1. In an alternative means case, where a single offense may be committed in more
than one way, there must be jury unanimity as to the guilt for the single crime
charged. Unanimity is not required, however, as to the means by which the
crime was committed so long as substantial evidence supports each alternative
means.

2. In defining great bodily harm, the word "great" distinguishes the bodily harm
necessary for aggravated battery from slight, trivial, minor, or moderate harm,
and as such it does not include mere bruises, which are likely to be sustained in
simple battery. Whether the injury or harm is great or not is generally a question
of fact for the jury.

3. When an injury has been established in an aggravated battery prosecution,
whether the injury is a disfigurement is a fact question to be determined by the
trier of fact. Disfigurement should be considered in the ordinary sense.

4. The victim's observations of a weapon are relevant in an aggravated battery
case, although the victim's feelings about those observations are irrelevant. The
determination of whether the object was a deadly weapon is made on an
objective basis rather than subjectively from the victim's point of view.

5. When a physical object is offered into evidence and a question arises as to its
connection with either the defendant or the crime charged, unless it is clearly
irrelevant, the object should be admitted for such weight and effect as the jury
sees fit to give it.

6. Under the rule of collateral estoppel, when an issue of ultimate fact has once
been determined by a valid and final judgment that issue cannot again be
litigated between the same parties in any future lawsuit.

7. When a judgment is rendered that includes a finding of a prior conviction for
purposes of the Habitual Criminal Act, a defendant may challenge whether that
finding is supported by competent evidence. However, once that finding is final,
a presumption of regularity attaches to that finding. No purpose would be
served in allowing the defendant to later relitigate that same issue.

Mike Ward, county attorney, Morgan Metcalf, deputy county
attorney, and Carla J. Stovall,
attorney general, were on the brief for appellee.

The opinion of the court was delivered by

LARSON, J.: Richard B. Kelly appeals his jury convictions of one count of
aggravated battery of a law enforcement officer and one count of simple battery of a
law enforcement officer, as well as his controlling sentence of 46 years to life imposed
under the Habitual Criminal Act. The convictions arose from Kelly's alleged attack,
while in prison, upon two correctional officers.

Factual statement

In October 1990, Kelly was convicted by a jury in Wyandotte County, Kansas, of
three counts of aggravated assault. The trial court found that Kelly had been convicted
in Missouri on March 23, 1989, of armed robbery and invoked the provisions of the
Habitual Criminal Act to enhance Kelly's sentences for the crimes. Kelly was sent to
the El Dorado Correctional Facility (EDCF).

Kelly was designated a special management inmate. He was housed in a
segregation unit, cell block B, number 266. Segregation inmates are kept in their cells
23 hours a day and have no physical contact with other inmates. They receive meals in
their cell and are allowed out of their cells only to shower and to go to the exercise yard.

Robert Sutton and Roger Noah were correctional officers working in cell block B
at EDCF in 1992. Their duties included feeding the segregation inmates and taking
them to the showers. An inmate is fed by having him place his hands on the window of
the door to his cell while the officers unlock a small "bean hole," which folds down
towards the officers. The inmate's food is slipped through the hole. When an inmate is
moved from his cell, he places his hands through the bean hole to be handcuffed. After
his restraints are in place, the officers open the door to escort the prisoner to his
destination. A reverse procedure is followed to remove the restraints when the inmate
reaches his destination.

On December 20, 1992, officers Sutton and Noah took Kelly his evening meal.
Kelly placed his hands on the window, but Sutton saw something between two fingers
of Kelly's right hand. Sutton thought it was a razor blade wrapped in tape and told
Noah not to open the bean hole. The officers informed their sergeant, and a
"shakedown team" was sent to Kelly's cell to investigate. Nothing was found in Kelly's
cell, although his mattress, which had a slit in it, was replaced.

The following day, Noah and Sutton were informed that after his shower, Kelly
was to be transferred to cell 200, an observation cell. Kelly was taken from cell 266
and locked in the shower. After his request for a razor was denied, he simply stood in
the shower without showering. Noah then went to cell 266 to take Kelly's belongings to
cell 200.

The officers then restrained Kelly and escorted him to cell 200. Once inside,
Kelly placed his hands through the bean hole to have his restraints removed. Using
both hands, Noah put the handcuff key in the right lock and unlocked Kelly's right cuff.
The officers testified that Kelly withdrew his right hand into the cell. Sutton's left hand
grasped the empty right cuff.

Noah proceeded to put the key in the left cuff lock hole and turned it. He then
saw Kelly's hand flash out twice and saw Sutton grab his hand and back up. Noah
noticed blood splattering and looked down and saw he was also cut. Sutton saw Kelly's
hand come out and hit his hand, then strike Noah. He saw what looked like yellow
masking tape between Kelly's fingers. Noah heard Kelly say, "I got both them
[expletive]," and heard the toilet flush.

EDCF officer James Manion, working in the control center, saw Kelly's hand
come out of the bean hole and move across both officers' hands, then saw blood
dripping. Manion also heard the toilet flush before he was able to shut off the plumbing.

After the officers were cut, an emergency alarm was called. Both officers were
taken to a hospital for treatment. Noah suffered a 12 cm. long, deep laceration across
the top of his right hand, which exposed, but did not cut, his tendons. Noah also
received a 6 cm. long cut on his left wrist. His injuries required 12 interior stitches and
29 exterior stitches. The cut on Noah's wrist was very close to the radial artery, which if
severed could have led to serious bodily injury or death. Sutton received a 10 cm. long
cut on the back of his hand, which also exposed, but did not cut, the tendons. Four
interior stitches and 15 exterior stitches sutured his cut. The clean edges of the cuts
were consistent with a sharp instrument, such as a razor blade from a disposable razor.
Although Sutton suffered a slight infection and both men retained scars from their
injuries, they ultimately regained full use of their hands.

After the alarm, a shakedown team removed Kelly from his cell and searched it.
No weapons were found in the cell or on Kelly's person following a strip search. Kelly
was x-rayed, but no weapon was hidden inside his body.

Kelly was charged with two counts of aggravated battery against a law
enforcement officer. At trial, the State was allowed to place in evidence a disposable
BIC razor, a razor blade that had been removed from a BIC, and the remains of a BIC
after the blade had been removed. Photographs of the inside of cell 266, where Kelly
had been removed from, revealed the words "Kill guard" written on the walls. In
addition, Sutton testified that prior to the cutting, Kelly had made statements telling
them how fast he was. Noah testified that Kelly had said Noah would pay for depriving
him of his meal the day before the incident.

Kelly testified on his own behalf. He denied the photographs were of cell 266
and claimed he made no such statements to Sutton and Noah. Kelly testified that as
Noah was unlocking the cuffs, Sutton used his left hand to hold on to Kelly's right hand.
Sutton reached down with his right hand to pick up a piece of metal that had fallen off of
some leg irons, and then he jerked back. Then Kelly saw blood, shook off the unlocked
cuffs, and dropped them outside the bean hole. Kelly denied cutting the officers or
actually seeing them get cut, but thought that the cuts had to have been caused
"whenever Sutton made that move and turned off, whatever, you see what I'm saying, it
had to come from there." Kelly also denied flushing his toilet.

The court instructed the jury on all alternative means of committing aggravated
battery against a law enforcement officer and the lesser included offense of battery
against a law enforcement officer. The court also gave a deadly weapon and great
bodily harm instruction.

The jury found Kelly guilty of aggravated battery against Officer Noah and
battery against Officer Sutton. Kelly moved for a new trial or judgment of acquittal on
the grounds that the jury returned an inconsistent verdict and that no evidence
supported the aggravating circumstances. These motions were denied.

Kelly was sentenced to 1 to 5 years for the battery conviction and 15 years to life
for the aggravated battery conviction, both sentences to run consecutive to each other
and his prior sentence. At sentencing, the court applied the Habitual Criminal Act,
K.S.A. 21-4504(b), and found that the State, by submitting the journal entry of judgment
for Kelly's 1990 Kansas felony convictions (which included a finding that Kelly had been
convicted in Missouri of armed robbery in 1989), had properly proved Kelly had two
prior felony convictions. The court then enhanced Kelly's aggravated battery sentence
to a term of 45 years to life.

Kelly first argues the record is insufficient to support his conviction for
aggravated battery against Noah. Kelly asserts the facts do not indicate that Noah
suffered great bodily harm or disfigurement. He also claims the State failed to produce
any evidence of a deadly weapon in this case. He makes the additional argument that
the record must reveal evidence of all three of the alternative means of committing
aggravated battery in order to support a conviction, citing State v. Timley, 255 Kan.
286, 289, 875 P.2d 242 (1994).

The aggravated battery statute in effect at the time of the crime, K.S.A. 21-3414
(Ensley 1988), provided:

"Aggravated battery is the unlawful touching or application of force to the person of
another with
intent to injure that person or another and which either:

(a) Inflicts great bodily harm upon him; or

(b) Causes any disfigurement or dismemberment to or of his person; or

(c) Is done with a deadly weapon, or in any manner whereby great bodily harm,
disfigurement,
dismemberment, or death can be inflicted."

The amended information charged in Count II:

"That in Butler County, Kansas, on or about the 21st day of December, 1992, Richard B.
Kelly, a
person in the custody of the Secretary of Corrections (El Dorado Correctional Facility Inmate
#52978), did
then and there unlawfully touch or apply force to the person of Roger L. Noah, a Correctional
Officer
engaged at the time in the performance of his official duty, with the intent to injure Roger L.
Noah, and
which either: (a) inflicted great bodily harm upon him; or (b) caused any disfigurement or
dismemberment
to him; or (c) was done with a deadly weapon (sharp instrument of some kind), or in any manner
whereby
great bodily harm, disfigurement, dismemberment, or death could be inflicted."

In stating our standard of review of this issue, we have said:

"When the sufficiency of the evidence is challenged in a criminal case, the standard of
review is
whether, after review of all the evidence, viewed in the light most favorable to the prosecution,
the
appellate court is convinced that a rational factfinder could have found the defendant guilty
beyond a
reasonable doubt." State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324
(1996).

In addition, appellate courts look only to the evidence in favor of the verdict to
determine if the essential elements of a charge are sustained. State v. Pratt, 255 Kan.
767, 768, 876 P.2d 1390 (1994).

As the information in this case alleged alternative means of committing a crime,
we must consider the rule set forth in State v. Timley, 255 Kan. 286. We recently
stated:

"'In an alternative means case, where a single offense may be committed in more than one
way,
there must be jury unanimity as to the guilt for the single crime charged. Unanimity is not
required,
however, as to the means by which the crime was committed so long as substantial evidence
supports
each alternative means.' State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242
(1994).

We hold that the evidence in this case, when viewed in the light most favorable
to the prosecution, could have supported a finding of guilt for any of the alternative
means of committing aggravated battery. Evidence was presented to show great
bodily harm as well as disfigurement, as Noah's previously described injuries required
extensive suturing and resulted in permanent scarring. The wounds were caused by a
dangerous weapon which could have severed the radial artery and resulted in "great
bodily harm, disfigurement, dismemberment, or death."

"The word 'great' distinguishes the bodily harm necessary in this offense from slight, trivial,
minor or
moderate harm, and as such it does not include mere bruises, which are likely to be sustained in
simple
battery. Whether the injury or harm is great or not is generally a question of fact for the jury.
[Citation
omitted.]"

Noah's injuries consisted of no mere bruising, nor were they superficial grazes or cuts.
They required several internal as well as numerous external stitches to repair the
damage. We have no difficulty concluding that sufficient evidence existed to support
this means of committing aggravated battery.

We found that a scar on the head hidden by the victim's hair was sufficient for
disfigurement in State v. Chandler, 252 Kan. 797, 850 P.2d 803 (1993), and said:
"When an injury has been established, whether it is a disfigurement under K.S.A. 21-3414(b) is a
fact question to be determined by the trier of fact. Disfigurement should be
considered in the ordinary sense." 252 Kan. at 804. Clearly, Noah's scars provide
substantial evidence to support a finding of disfigurement.

The evidence also could have indicated that the injuries were committed with a
deadly weapon, as some type of sharp instrument was used in a manner that obviously
was capable of causing death or serious bodily injury. See State v. Bowers, 239
Kan.
417, Syl. ¶ 1, 721 P.2d 268 (1986). Additionally, the evidence clearly supports a finding
that the injuries were inflicted in a manner whereby great bodily harm, disfigurement,
dismemberment, or death could have been inflicted. Thus, substantial evidence
supports each alternative means of committing aggravated battery.

Further, there is a logical reason for the discrepancy in the verdicts stemming
from the attacks on the two different officers. The evidence reveals the injuries to Noah
were more severe than the injuries to Sutton, particularly because he received two
different cuts. In addition, one of Noah's cuts came dangerously close to severing a
major artery. Thus, there is evidence from which a jury could have decided that the
attack on Noah resulted in great bodily harm or disfigurement or was done in a manner
whereby great bodily harm, disfigurement, or death could have been inflicted, even
though it apparently concluded that the attack on Sutton did not have such a result or
was not performed in such a manner. Based on this evidence, a rational factfinder
could have found Kelly guilty beyond a reasonable doubt of aggravated battery on
Noah.

Deadly weapon instruction

The trial court gave the jury the following deadly weapon instruction: "The
definition of a deadly weapon for purposes of the aggravated battery statute is an
instrument which, from the manner in which it is used, is calculated or likely to produce
death or serious bodily injury." Citing State v. Bowers, 239 Kan. 417, Kelly
requested
the addition of the language: "In cases of aggravated battery, the alleged victim's
perceptions of the instrument used are irrelevant." The trial court refused to add this
language to the instruction.

We review jury instructions under the following standard:

"'Jury instructions are to be considered together and read as a whole without isolating any
one instruction.
If the instructions properly and fairly state the law as applied to the facts in the case, and if the
jury could
not reasonably have been misled by them, then the instructions do not constitute reversible error
although
they may be in some small way erroneous.' [Citation omitted.]" State v. Hunt, 257
Kan. 388, 392, 894 P.2d
178 (1995).

In other words, we should approve the instructions if the instructions properly and fairly
state the law as applied to the facts of the case considered as a whole, and if they
could not reasonably mislead the jury. State v. Butler, 257 Kan. 1043, 1065, 897
P.2d
1007 (1995).

We do not find that the omission of the requested language is significant, given
the instructions as a whole, or that the instructions given could have reasonably
mislead the jury. The deadly weapon instruction as given did not misstate the law.
State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985) (citing Black's Law
Dictionary
487 [4th ed. rev. 1968]) (defining deadly weapon for purposes of aggravated battery the
same as the instruction given here).

Kelly is correct that an objective test applies to determine whether a deadly
weapon was used in aggravated battery cases, as opposed to a subjective test applied
in aggravated robbery cases. Bowers, 239 Kan. at 422. However, Kelly's proposed
language may have misled the jury in this case because it might have made the jury
think the victim's observations are irrelevant. This is not the case. The victim's
observations are certainly relevant; only the victim's feelings about those observations
are irrelevant. The statement advocated by Kelly, that the "victim's perceptions of the
instrument used are irrelevant" does not accurately convey the test that should be
used, which is better stated in the comment to PIK Crim. 3d 56.18, Aggravated Battery:
"The determination of whether the object was a deadly weapon is made on an objective
basis rather than subjectively from the victim's point of view."

Finally, even if the refusal to add the requested language was improper, any
error was certainly harmless. We have said: "'Errors that do not affirmatively cause
prejudice to the substantial rights of a complaining party do not require reversal when
substantial justice has been done.'" State v. Johnson, 255 Kan. 140, 148, 871 P.2d
1246 (1994) (quoting State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 [1991],
cert.
denied 505 U.S. 1207 [1992]).

Failure to give multiple counts instruction

Kelly asserts the trial court erred in failing to give PIK Crim. 3d 68.07, Multiple
Counts--Verdict Instruction, although he concedes he did not request the instruction.
The instruction provides:

"Each crime charged against the defendant is a separate and distinct offense. You must
decide
each charge separately on the evidence and law applicable to it, uninfluenced by your decision as
to any
other charge. The defendant may be convicted or acquitted on any or all of the offenses charged.
Your
finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror."

"No party may assign as error the giving or failure to give an instruction unless he or she
objects thereto
before the jury retires to consider its verdict, stating distinctly the matter to which he or she
objects and the
grounds of the objection unless the instruction is clearly erroneous. K.S.A. 22-3414(3).

"An instruction is clearly erroneous only if the reviewing court reaches a firm conviction
that if the
trial error had not occurred there is a real possibility the jury would have returned a different
verdict. State
v. Deavers, 252 Kan. 149, 164-65, 843 P.2d. 695 (1992), cert. denied 508 U.S.
978 (1993)."

Kelly argues that because it was error to give an instruction that differed from
PIK Crim. 2d 68.07 in State v. Macomber, 244 Kan. 396, 405-06, 769 P.2d 621,
cert.
denied 493 U.S. 842 (1989), overruled on other grounds State v. Rinck, 260
Kan. 634,
923 P.2d 67 (1996), it must constitute clear error to fail to give the instruction at all.

In Macomber, however, the defendant objected to the instruction eventually
given to the jury. Thus, the standard of review applied in Macomber differed from
the
clearly erroneous standard we utilize here.

Although the multiple-count instruction should have been given in this case, we
cannot find that the failure to give the instruction was clearly erroneous. Here, the jury
was given separate verdict forms for each count, and it is clear the jury weighed the
evidence for each count separately in reaching its verdicts.

The evidence in this case would only support a finding that Kelly attacked both
Sutton and Noah, or neither of them. As the jury plainly decided that Kelly perpetrated
the attack, it was left to decide whether aggravating factors were present in both
counts. The jury obviously independently weighed the evidence in order to conclude
that an aggravated battery was committed against Noah, while only a simple battery
was committed against Sutton. The jury clearly considered the aggravating factors
separately for each count, despite the court's failure to specifically instruct the jury to do
so.

There appears to be no real possibility that the jury would have rendered a
different result had the multiple-count instruction been given. As such, the failure to
give the instruction is, at its worst, harmless error as we have previously described.
The failure to give the instruction set forth in PIK Crim. 3d 68.03 cannot be deemed
clearly erroneous.

Admission of razors and blades

Kelly next argues that the court should not have allowed the prison-issue razors
and blades to be admitted into evidence for demonstrative purposes. He claims the
State failed to show any connection between the razors that were admitted and the
alleged crimes.

"'Subject to certain exclusionary rules, the '[a]dmissibility of physical evidence is within
the sound
discretion of the court and is to be determined by the court on the basis of its relevance and its
connection
with the accused and the crime charged.' State v. Beard, 220 Kan. 580, Syl. ¶
3, 552 P.2d 900 (1976). In
State v. Ji, 251 Kan. at 15, we said:

'[W]hen a physical object is offered into evidence and a question arises as to its
connection with
either the defendant or the crime charged, unless it is clearly irrelevant, the object should be
admitted for
such weight and effect as the jury sees fit to give it.'

"We have at times stated that evidence may be admissible which does not constitute a
portion of
the crimes charged, but which has a natural, necessary, or logical connection to the crime.
State v.
McClanahan, 254 Kan. 104, 116, 865 P.2d 1021 (1993)."

Relevant evidence is defined as "'"evidence having any tendency in reason to
prove any material fact." [Citations omitted]. The determination of relevancy is a matter
of logic and experience, not a matter of law. [Citation omitted.]'" State v. Friberg,
252
Kan. 141, 147, 843 P.2d 218 (1992).

The evidence objected to was clearly relevant in that inmates have access to
such blades and testimony indicated that a very sharp item, consistent with such a
blade, caused the wounds. The blades were also consistent with the item Sutton
thought he saw Kelly holding both the day before the attack and during the attack. The
admission of the blades may have had the logical tendency to prove how Kelly could
have committed the crimes, even if they were not the exact item used to cause the
officers' injuries.

As these items were clearly relevant, they were properly admitted for such
weight as the jury deemed fit to give them. The trial court did not abuse its discretion in
admitting these items, and this point has no merit.

Proof of prior felony conviction

For his final point, Kelly claims that, as a matter of law, the
trial court could not
apply collateral estoppel to establish his prior Missouri conviction under the Habitual
Criminal Act. We have unlimited review of questions of law. State v. Brady, 261
Kan.
109, Syl. ¶ 1, 929 P.2d 132 (1996).

Kelly frames his argument in terms of the requirements of K.S.A. 1992 Supp. 21-4504(f),
which states: "A judgment may be rendered pursuant to this section only after
the court finds from competent evidence the fact of former convictions for felony
committed by the prisoner, in or out of the state." The question is whether a previous
finding of a prior conviction satisfies the "competent evidence" requirement of the
provision, which is governed by K.S.A. 60-465(4). See State v. Strickland, 21 Kan.
App. 2d 12, 900 P.2d 854 (1995).

In this case, a certified copy of the journal entry of judgment in Kelly's previous
Wyandotte County case was admitted into evidence. The journal entry showed the
Wyandotte County convictions and further stated:

"4. That on the 20th day of December, 1990, a hearing was held before the Honorable
Daniel A.
Duncan on the State's motion to invoke the provisions of the Habitual Criminal Act pursuant to
K.S.A. 21-4504. The State presented evidence in the form of Journal Entry of Judgment and oral
testimony from
Officer Graham in regard to the following prior conviction:

(a) On the 23rd day of March, 1989, defendant was convicted of the crime of Armed
Robbery, a
felony, in the court of Jackson County, Missouri, in case number CR89-1059.

After considering the above matters the Court sustained the State's motion."

In State v. Fisher, 233 Kan. 29, Syl. ¶ 4, 661 P.2d 791 (1983), we
indicated:
"Under the rule of collateral estoppel, when an issue of ultimate fact has once been
determined by a valid and final judgment that issue cannot again be litigated between
the same parties in any future lawsuit."

We see no reason why this rule should not be followed regarding prior
convictions if all the elements of collateral estoppel are met. When a judgment is
rendered that includes a finding of a prior conviction for purposes of the Habitual
Criminal Act, a defendant may challenge whether that finding is supported by
competent evidence. However, once that finding is final, a presumption of regularity
attaches to that finding. State v. Patterson, 262 Kan. 481, __ P.2d __ (1997). No
purpose would be served in allowing the defendant to later relitigate that same issue.
See Justice v. Board of Wyandotte County Comm'rs, 17 Kan. App. 2d 102, 109, 835
P.2d 692, rev. denied 251 Kan. 938 (1992) ("Determinations of fact, unappealed
from,
are final and conclusive.").

We have often set forth the requirements of collateral estoppel: (1) a prior
judgment must have been entered on the merits which determined the rights and
liabilities of the parties on the issue based upon ultimate facts as disclosed by the
pleadings and judgment; (2) the parties must be the same or in privity; and (3) the
issue litigated must have been determined and necessary to support the judgment. In
re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991).

In the present case, all the requirements of collateral estoppel regarding the
Missouri conviction have been met. A prior judgment on the merits applied the Habitual
Criminal Act based upon the factual finding that Kelly had a prior conviction from
Missouri. The parties are the same or in privity. The issue of the prior conviction was
necessary to invoke the provisions of the Habitual Criminal Act for Kelly's 1990
convictions.

Kelly primarily disputes the existence of the first element as to whether the
finding of the prior conviction was one of ultimate fact. He relies on our decision in
State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976), that a finding of a prior
conviction for sentencing purposes was not a fact to be decided by the jury as the
ultimate factfinder. Kelly argues that this means a finding regarding a prior conviction is
not one of "ultimate fact" which can be applied in a later case through collateral
estoppel.

Kelly's argument regarding Loudermilk is flawed, as that case considered an
entirely different issue. The issue of who must make a finding does not affect whether
that finding is one of ultimate fact. Thus, the Loudermilk opinion has no bearing
upon
whether a finding of a prior conviction may be subject to collateral estoppel.

The journal entry of judgment sustaining invocation of the Habitual Criminal Act,
dated February 25, 1991, indicated the State presented evidence in the form of a
journal entry of judgment and oral testimony regarding the prior Missouri conviction.
The journal entry does not state whether this evidence was competent pursuant to 60-465(4).
However, there is no showing that Kelly objected to or challenged this finding
at that time. Thus, the finding is final and conclusive and should be regarded as
competent to establish a prior conviction pursuant to 21-4504(f).